United States v. Fernandez

311 F. Supp. 3d 166
Procedural entryThis page is a short order in United States v. Fernandez. Read the opinion of the Court — 624 F. App'x 3
Court of Appeals for the D.C. Circuit·Decided May 21, 2018·No. Criminal Action No. 10–18–4 (JDB)·Published

Opinion

JOHN D. BATES, United States District Judge

Before the Court is [404] Fernandez's motion to set aside his sentence under 28 U.S.C. § 2255. Fernandez pleaded guilty to, and was sentenced on, one count of conspiracy to distribute cocaine knowing and intending that it would be unlawfully imported into the United States. See Judgment [ECF No. 299]. Fernandez had pleaded pursuant to an agreement that contained, among other provisions, a waiver of his right to appeal most aspects of his plea and sentence. See Plea Agreement [ECF No. 247] ¶ 19. In March 2016, Fernandez filed this motion, arguing that the attorneys who represented him at his first *169plea hearing, at his second plea hearing and sentencing, and on his direct appeal were each ineffective in allowing him to agree to the appeal waiver, and that he did not understand what the court-appointed translator said to him during his plea hearing, rendering the waiver involuntary. See Mot. Under 28 U.S.C. § 2255 ("Def.'s Mot.") [ECF No. 404] at 5-9. For the reasons explained below, the Court will deny Fernandez's motion.

I. BACKGROUND

The government indicted Fernandez in January 2010 on three charges: two counts of conspiracy to distribute five kilograms or more of cocaine on board a vessel subject to the jurisdiction of the United States, and one count of conspiracy to distribute five kilograms or more of cocaine knowing and intending that the cocaine would be unlawfully imported into the United States. See Superseding Indictment [ECF No. 4] at 2-3, 7. On November 10, 2011, Fernandez signed an initial plea agreement, in which he agreed to plead guilty to the conspiracy-to-import count in exchange for the government's agreeing to dismiss the other two counts; agreed to the statement of facts that underlay the conspiracy-to-import count; and waived his appeal rights. See First Plea Agreement [ECF No. 107] ¶¶ 1-3, 19. The same day, Fernandez pleaded guilty, and the Court accepted the plea. See Min. Entry of Nov. 10, 2011. Robert E. Abreu represented Fernandez during the plea bargaining process and at the November 2011 plea hearing. See Tr. of Nov. 10, 2011 Plea Hearing [ECF No. 408-4] at 2:9-:10, 17:6-:11.

However, Fernandez later sent a letter to the Court requesting new counsel, and Abreu moved to withdraw as counsel in February 2012. See Mot. to Withdraw [ECF No. 131]. The Court granted Abreu's motion, see Min. Entry of Mar. 13, 2012, and Brian W. Stolarz was then appointed counsel for Fernandez under the Criminal Justice Act, see Notice of Appearance [ECF No. 211]. On August 13, 2012, Fernandez (through Stolarz) agreed to accept his prior plea again, with a few changes not relevant here. See Plea Agreement at 11; Tr. of Aug. 13, 2012 Plea Hr'g [ECF No. 408-11] at 2:7-:9, 16:2-:5. The government asked the Court to conduct a new plea colloquy with Fernandez under Federal Rule of Criminal Procedure 11, "to cure any possible Sixth Amendment taint or any other issues that have come up in the past." See Tr. of Aug. 13, 2012 Plea Hr'g at 2:9-:12. The Court agreed to conduct a new colloquy.

At the outset of the colloquy, the Court asked Fernandez whether he could "understand these proceedings through the use of the interpreter," to which Fernandez replied: "Yes, I am understanding it." Id. at 17:25-18:2. The Court informed Fernandez: "If you don't understand anything about these proceedings or any question that I ask, just let me know and I'll try to explain. If at any time you wish to consult with Mr. Stolarz, let me know that, and you'll be able to talk to him privately." Id. at 17:5-:8. The Court then conducted the colloquy, during which the Court asked Fernandez whether he understood that, "by pleading guilty, [he] would be generally giving up [his] rights to appeal." Id. at 25:9-:11. Fernandez responded: "I would be waiving my right to appeal. Yes, of course." Id. at 25:12-:13. The Court also asked whether Fernandez had had a sufficient opportunity to discuss the charge with Stolarz, to which Fernandez gave an affirmative response, see id. at 27:9-:13; the Court then described the charge against Fernandez, and Fernandez stated that he understood the charge, see id. at 27:14-:22. The Court fully explained the appeal waiver and, after Fernandez again told the Court that he understood that he was waiving his right to appeal, the Court found that the waiver had been discussed with counsel and that Fernandez had *170knowingly and voluntarily waived his right to appeal. See id. at 39:14-40:22. After the colloquy, Fernandez pleaded guilty and the Court accepted the plea. See id. at 44:2-45:13.

Stolarz continued to represent Fernandez at his sentencing. See Tr. of Sentencing [ECF No. 323] at 1. There, Fernandez said that he "ha[d] not participated in any criminal groups, let alone any drug trafficking," id. at 27:25-28:2, but acknowledged his "participation" in criminal activity and that he knew he had "made a mistake," id. at 27:8, 27:24.

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